Rahamann v. N.C. Department of Correction

• Court: North Carolina Industrial Commission
• Decided: November 3, 2006
• Docket: I.C. NO. TA-18144
• Status: Published

Opinion

* * * * * * * * * * * The Full Commission reviewed the prior Decision and Order, based upon the record of the proceedings before Chief Deputy Commissioner Gheen and the briefs before the Full Commission. The appealing party has not shown good ground to reconsider the evidence; receive further evidence; rehear the parties or their representatives; or amend the Decision and Order. Accordingly, the Full Commission affirms the Decision and Order of Chief Deputy Commissioner Gheen.

* * * * * * * * * * * Based upon all of the competent evidence of record and reasonable inferences flowing therefrom, the Full Commission makes the following:

FINDINGS OF FACT 1. On July 23, 2003, Plaintiff filed a Tort Claim Affidavit with the North Carolina Industrial Commission alleging medical negligence.

2. On October 13, 2004, a hearing on Plaintiff's claim was held by the Deputy Commissioner. At the hearing, Plaintiff was granted a specific period from the filing date of the Interlocutory Decision and Order to file an affidavit from a qualified medical expert which stated that in the expert opinion of the affiant, the care of which Plaintiff complained did not comply with the applicable standard of care. Plaintiff was also informed that his failure to provide the Commission with the necessary affidavit within the time allowed would result in the dismissal of his claim.

3. The affidavit required by Rule 9(j) has not been provided as ordered.

* * * * * * * * * * * Based upon the foregoing findings of fact, the Full Commission reaches the following:

CONCLUSION OF LAW 1. Plaintiff has failed to provide the Industrial Commission with an affidavit from a qualified medical expert which states that the care of which plaintiff complains does not comply with the applicable standard of medical care. Accordingly, Plaintiff has failed to demonstrate that he possesses sufficient evidence to prosecute his claim against Defendant. N.C. Gen. Stat. § 1A-1, Rule 9(j).

* * * * * * * * * * * Based upon the foregoing findings of fact and conclusion of law, the Full Commission enters the following:

ORDER 1. Plaintiff's claim is hereby DISMISSED WITH PREJUDICE.

2. No costs are taxed as Plaintiff was permitted to file this civil action in forma pauperis.

This 1st day of November 2006.

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

S/_____________ PAMELA T. YOUNG COMMISSIONER